Unless you’ve been hiding in a wine barrel, you’ve no doubt seen a flurry of news articles in the last 6 months regarding ADA website accessibility lawsuits. Specifically, wineries in New York state and California have been served with lawsuit papers in the past 6 months claiming their websites are not ADA compliant. These wineries are caught not because of insolence but because of ignorance, as many of us don’t know what it means to be ADA compliant. The sad truth is, the negative press coverage, cost, and embarrassment burden of the accused are typically far in excess of the cost and trouble it would have been to negate these issues.
(Graph: ADA Title III Lawsuits in Federal Court: 2012-2018: 2013: 2722; 2014: 4436, 63% increase over 2013; 2015: 4789, 8% increase over 2014; 2016: 6601, 37% increase over 2015; 2017: 7663, 16% increase over 2016; 2018: 10163, 33% increase over 2017) Source: adatitleiii.com
What is an ADA Compliant Website?
Let’s start with some facts.
Individuals with visual or physical disabilities may use screen readers, voice-activated or other assistance technology to help them navigate and get the context or content of a website.
Title III of The Americans with Disabilities Act of 1990 (the ADA) requires private sector businesses that serve as “places of public accommodation” to remove “access barriers” that inhibit a disabled person’s access to goods and services. (42 U.S.C. § 12182(a)) Generally, any private business with more than 15 employees is subject to the ADA; however, Title III does not directly address whether “places of public accommodation” include websites, mobile applications, or other web-based technologies. While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that: (1) private company websites do qualify as “places of public accommodation” and (2) websites that are not compatible to screen-reading software constitute “access barriers” and therefore deny plaintiffs the right of equal access.
Obviously, in 1990 Congress could not have foreseen the crucial role that the internet would play in providing goods and services, and so Title III only provides the standards required for businesses’ physical locations to properly accommodate disabled individuals but does not provide guidance for the internet, or web-based and mobile applications.
There are no guarantees or certifications. But there are Web Content Accessibility Guidelines (“WCAG”) established by the World Wide Web Consortium (“W3C”). These are listed on the web with checklists for everyone to use, but even if you follow them that doesn’t mean you won’t be sued. The best you can do at this stage is if you are a public company, ensure that you have taken these reasonable steps to ensure that your website can be accessed by most screen readers and follows the guidelines as closely as possible.
What are the Content Accessibility Guidelines?
Since screen readers scan your website much in the same way Google would index your pages, the great news is, if you follow these guidelines you will have a consistent and clean website that will perform well and have strong SEO as well as be accessible to screen reading technology. So the smart eCommerce manager is taking a look at this as just a new checklist for a strong website. I list them out below, but as you can see, even these guidelines leave a lot of room for interpretation.
W3C organizes their guidelines into four areas: Perceivable, Operable, Understandable and Robust guidelines.
So how are you supposed to make things “easier” and “compatible” for things in the future? Well, for once it looks like the courts might be helping us out. As the mountain of court cases from the last year are appearing before judges, many are being thrown out because either the court deemed there was no damage on behalf of the plaintiff (Giffin v. Dept. of Labor Credit Union) or because the business addressed the issues and made the issue moot by the time the case came to trial (Diaz v. The Kroger Co).
The government has been slower to act. Due to the increase in ADA website accessibility lawsuits and negative media coverage about them, in 2018 the U.S. House of Representatives proposed an amendment to the ADA to require prospective plaintiffs to first provide written notice of noncompliance to businesses operating public websites – before filing suit. The business would then have 60 days to come up with a plan to address the plaintiff’s concerns. This bill has been in debate, but it at least acknowledges there is a problem.
So What Can You Do?
While you may want to bury your head in your vines and hope this doesn’t come to fruition at your winery, that could be a costly approach. The best thing wineries can do is educate themselves about the criteria and have the documentation they can show if pressed, that they are making a concerted effort to provide equal access to information.
Know if your eCommerce provider follows the published guidelines.
eCommerce providers are aware of the issues facing wineries as well, and some are taking proactive steps to ensure their platforms are accessible and compliant with WCAG. The two I know of that are most on top of this are WineDirect and Commerce7. Although it is not a guarantee that other aspects of your site are compliant, having a backend system that is ADA-friendly is definitely a good thing.
Hire a web developer to audit your website and update it based on these guidelines.
Nobody should/can offer a guarantee or a certification, but there are tools available to scan your site and tell you where you’re missing image tags or other fixable information. If your site is really old and doesn’t have a CMS or is inaccessible except by someone with HTML experience, consider updating your website. It probably isn’t responsive to mobile viewership either.
Keep your communication with this developer and ask them to provide you with some sort of report or detail on what they did. If you ever are challenged, you’ll be in a better position if you can prove you made a reasonable effort to make your site usable to the disabled. You should also put a page on your site that describes your accessibility efforts and provides contact information for anyone encountering barriers or issues.
Keep on top of it.
If you’ve done all this already – congratulations – you’re fine as long as you never touch your site again. But, since you’re always updating vintages and blogs and scores and pictures, your new content will likely be missing the tags and structure necessary to be picked up by these readers. So set monthly audits, or at the very least set up a re-check every 6 months to keep your website clean and indexed correctly.
With a little bit of effort, you should be able to put yourself in a strong position to argue against any complainers that come along…and you’ll have a healthier and better performing site because of it.
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